A. K. Srivastava, J ( 1 ) THIS is a criminal revision against order dated 22. 8. 1994 passed by a Magistrate whereby the respondent has been acquitted. Reply has been filed. ( 2 ) MR. V. K. Shali, learned counsel for the respondent makes a preliminary legal objection that this criminal revision is not maintainable as after summoning order the respondent has been acquitted by the learned Metropolitan Magistrate vide the impugned order dated 22. 8. 1994. ( 3 ) A rejoinder was filed on behalf of revisionist in which it is averred that the revision was filed in the bonafide belief that revision was maintainable. It is also pleaded that under sub-section (5) of Section 401 of the Code of Criminal Procedure, the present petition may be dealt with as an appeal. That sub-Section reads as follows: (5) Where under this code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. ( 4 ) IN view of the above rejoinder, there is now no dispute that the remedy with the petitioner was by filing an appeal and not by filing a revision. ( 5 ) LEARNED counsel for the respondent contended that it is not an absolute rule under sub-section (5) of Section 401 that a revision petition when objected to as not maintainable shall be treated as a petition of appeal. According to him it may be done only where the revision application is made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. He contended that considering the nature of the offence and the continued mental agony of the respondent in facing trial since the year 1991 and after being acquitted in the year 1994 in facing this revision petition since August 1995, this revision petition may not be permitted to be converted into a petition of appeal. He contended that considering the nature of the offence and the continued mental agony of the respondent in facing trial since the year 1991 and after being acquitted in the year 1994 in facing this revision petition since August 1995, this revision petition may not be permitted to be converted into a petition of appeal. He further contended that the respondent had raised construction after getting a plan sanctioned and thus there could only be some deviations which could be compounded under the provisions of the Delhi Municipal Corporation Act. It was further contended that the offence alleged against the petitioner was only under 332 of the said Act for which the punishment is simple imprisonment which may extend to six months of fine which may extend to rupees five thousand, or with both. The argument advanced is that considering the trivial nature of the offence it is not necessary in the interests of justice that the revision application be treated as a petition of appeal. According to him, the interests of justice in the afore-mentioned facts and circumstances rest with the respondent rather than the petitioner. ( 6 ) ON the other hand, learned counsel for petitioner says that it is the order of the day that people make constructions without the previous sanction of the concerned Authority and this tendency is causing great inconvenience on all fronts to the general public. ( 7 ) I have carefully considered the rival contentions of the learned counsel for the parties. It is to be observed that the petitioner in its rejoinder does not say that there was a bonafide erroneous belief on the part of the petitioner that no appeal lies against the impugned order. What is said in the rejoinder is that there was a bonafide belief that revision application was maintainable. It is also found that the present criminal litigation between the petitioner and the respondent has been since 1991 and the respondent has been acquitted by the Court below in the year 1994. Learned counsel for the petitioner admits that the respondent had obtained previous sanction from the concerned Authority for making constructions. According to him the sanctioned plan was not shown when the officer of M. C. D. visited the site. Learned counsel for the petitioner admits that the respondent had obtained previous sanction from the concerned Authority for making constructions. According to him the sanctioned plan was not shown when the officer of M. C. D. visited the site. Thus, it is to be found that admittedly the respondent had obtained previous sanction from the concerned authorities and it was not a case of raising construction without obtaining any previous sanction. Therefore, instead of prosecuting this case against the respondent by way of appeal it would be better for the petitioner to proceed under the other provisions of the Delhi Municipal Corporation Act, that is to say, for compounding or for demolition of the unauthorised construction. The respondent has already suffered mental agony and expense for defending the criminal prosecution right from 1991, till date. ( 8 ) IN the aforesaid facts and circumstances, I do not consider it appropriate to permit the prayer of the petitioner to treat this application for revision as a petition of appeal. ( 9 ) SINCE against the impugned order of acquittal no revision lies, this revision petition is dismissed as not maintainable.